Thompson v. Warden, Warren Correctional Institution

Filing 29

DECISION AND ORDER DENYING MOTION FOR DISCOVERY 25 . Signed by Magistrate Judge Michael R. Merz on 11/5/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CRAIG A. THOMPSON,
Petitioner,

:

- vs -

Case No. 3:18-cv-117
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHAE HARRIS, Warden,
Warren Correctional Institution
:
Respondent.

DECISION AND ORDER DENYING MOTION FOR DISCOVERY

This habeas corpus case is before the Court on Petitioner’s Motion for Additional
Discovery (ECF No. 25). Respondent has opposed the Motion (ECF No. 26). A motion for
discovery in a habeas corpus case is a non-dispositive pretrial motion which assigned Magistrate
Judge’s are authorized to decide in the first instance.
A habeas petitioner is not entitled to discovery as a matter of course, but only upon a factspecific showing of good cause and in the Court’s exercise of discretion. Rule 6(a), Rules
Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286
(1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000).
Before determining whether discovery is warranted, the Court must first identify the
essential elements of the claim on which discovery is sought. Bracy, 520 U.S. at 904, citing United
States v. Armstrong, 517 U.S. 456, 468 (1996). The burden of demonstrating the materiality of
the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.
2001), cert. denied, 537 U.S. 831 (2002), citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir.
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2000). “Even in a death penalty case, ‘bald assertions and conclusory allegations do not provide
sufficient ground to warrant requiring the state to respond to discovery or require an evidentiary
hearing.’” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003), cert. denied, 543 U.S. 842 (2004),
quoting Stanford, 266 F.3d at 460.
The purpose of discovery in any case is ultimately to gather evidence which will be put
before the court in deciding the case on the merits. In order to obtain an evidentiary hearing in
federal court on a claim on which he has not fully developed the factual basis in state court, a
habeas corpus petitioner must show cause and prejudice under Wainwright v. Sykes, 433 U.S. 72
(1977). Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Logically, there is no good reason to gather
evidence which one will not be permitted to present because one cannot satisfy the Keeney
standard. Therefore, if there are items of evidence sought in discovery which could have been
obtained and presented during the state court process but were not, a petitioner should make the
required Keeney showing before being authorized to conduct discovery to obtain the evidence. In
Johnson v. Bobby, 2018 U.S. Dist. LEXIS 44709 (S.D. Ohio Mar. 19, 2018). Chief Judge Sargus
applied this same reasoning to deny discovery where the results could not have been presented in
federal court because of Cullen v. Pinholster, 563 U.S. 170 (2011).
Petitioner seeks to obtain a document which apparently was labeled at trial as Defense
Exhibit B which he asserts is co-defendant Burns’ work schedule for the week of the burglary.
According to Thompson, it shows that witness Kaitlyn Kerg was lying when she claimed to have
been in Burns’ hotel room on the day prior to the burglary because the schedule shows Burns
would have been at work at that time. Thompson asserts that his failure to introduce this document
in evidence proves his trial attorney provided ineffective assistance of trial counsel.
The document cannot prove what Thompson asserts it proves. At most it would show that

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Burns was supposed to be at work when Kerg testified he was instead in his hotel room.
Furthermore documents by themselves do not testify; by itself the document would be hearsay.
Thompson referred to this “Defense Exhibit B” in his Petition for Post-Conviction Relief
(State Court Record ECF No. 11-1, PageID 791), but did not attach it to the Petition (See list of
exhibits at PageID 788). Thompson offers no explanation of why the exhibit was not offered there,
but its omission at least shows the document was not before the state courts when they decided
Thompson’s case. Under Pinholster, supra, this Court can neither hold an evidentiary hearing nor
expand the record to include evidence not before the state courts when they decided the case unless
Thompson first shows the state court decision was an “based on an unreasonable determination of
the facts based on the evidence presented in the state court proceeding.”
As noted in Respondent’s Memorandum in Opposition, the document was used to crossexamine Burns. Since it did not involve any statement by witness Kerg, it would have been at best
of minimal use in cross-examining her.
Accordingly, the Motion for Discovery is DENIED.

November 5, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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